IN THE COURT OF APPEALS OF IOWA
No. 13-1821
Filed September 17, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ZACHARY LEE SWENKA,
Plaintiff-Appellant.
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Appeal from the Iowa District Court for Johnson County, Stephen C.
Gerard II, Judge.
Zachary Swenka appeals his conviction and sentence following his guilty
plea. AFFIRMED.
Leon F. Spies of Mellon & Spies, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Janet M. Lyness, County Attorney, and Jude Pannell, Assistant County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.
Zachary Swenka killed one of his high school classmates in a traffic
accident. The minutes of testimony show Swenka was driving five classmates
back to school after cross country practice. At least some of the passengers
were reluctant to drive back to school with Swenka because they perceived him
to be a crazy driver. As feared, Swenka drove extremely fast and recklessly.
The passengers became scared and asked him to slow down, but he laughed
and continued on. Moments later he lost control of and crashed his car, killing
one of the passengers. Swenka was driving between 99 and 103 miles per hour
at the time he lost control of the vehicle. Swenka pleaded guilty pursuant to
North Carolina v. Alford, 400 U.S. 25 (1970), to involuntary manslaughter, in
violation of Iowa Code section 707.5(2) (2011). At the time of sentencing, the
prosecutor recommended incarceration, and Swenka requested a deferred
judgment. The district court sentenced Swenka to an indeterminate term of
incarceration not to exceed two years. Swenka appeals his sentence and
conviction.
We first address Swenka’s challenge to his sentence. The district court’s
sentence is cloaked with a strong presumption in its favor, and we will not
reverse its sentence absent an abuse of discretion. See State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). We afford the strong presumption of regularity to
the sentencing court due to our great confidence in judges to exercise their
discretion appropriately. See State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998).
To establish an abuse of discretion, the defendant must show the court exercised
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its discretion “on grounds or for reasons that were clearly untenable or
unreasonable.” Formaro, 638 N.W.2d at 724.
Swenka contends the district court improperly considered unproved
conduct in imposing sentence. Specifically, he contends the district court
considered Swenka’s prior dangerous driving activities referenced by the victim’s
parents while making their victim impact statements. Where the defendant
alleges the sentencing court took into consideration an impermissible sentencing
factor, such as unproved conduct or unprosecuted offenses, the presumption of
regularity afforded the sentencing court can be overcome only where there is
“clear evidence” the sentencing court actually relied on the impermissible factor
in exercising its broad sentencing discretion. See Sailer, 587 N.W.2d at 764.
See id. We will neither assume nor infer a judge failed to do so without clear
evidence in the record to the contrary. See id.; see also Formaro, 638 N.W.2d at
725.
Although the district court sympathetically acknowledged the parents of
the victim and thanked them for their statements, there is no evidence the district
court relied on their references to unproved conduct in imposing sentence. The
court explained its sentencing rationale as follows:
I have considered your age. I have considered the matters
that [your attorney] has disclosed about you. I considered your
family. I considered the nature of this offense, the incredibly
dangerous driving behavior, and aggravating circumstances for the
passengers and their concerns, and the resulting death of [the
victim].
For all of those reasons, the Court finds that the defendant in
this case should [serve] . . . an indeterminate term not to exceed
two years.
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Nowhere in the reasons for imposing sentence is there a reference to “additional,
unproven, and unprosecuted charges.” See id.; see also State v. Black, 324
N.W.2d 313, 315 (Iowa 1982) (stating “[w]e will set aside a sentence and remand
a case . . . if the sentencing court relied upon charges of an unprosecuted
offense” (emphasis added)). There is not clear evidence the district court
actually relied on unproved conduct in imposing sentence. Swenka’s challenge
to his sentence thus fails.
We next address Swenka’s challenge to his plea. He contends his Alford
plea was involuntary and lacked a factual basis. The State claims Swenka failed
to preserve error on these issues because Swenka failed to file a motion in arrest
of judgment as required by Iowa Rule of Criminal Procedure 2.24(3)(a).
“Generally, a defendant must file a motion in arrest of judgment to preserve a
challenge to a guilty plea on appeal.” State v. Meron, 675 N.W.2d 537, 540
(Iowa 2004); see Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s failure to challenge
the adequacy of a guilty plea proceeding by motion in arrest of judgment shall
preclude the defendant’s right to assert such challenge on appeal.”). This
requirement does not apply where a defendant was not advised of the duty to
challenge any plea defects by a motion in arrest of judgment within the relevant
time period. See Meron, 675 N.W.2d at 540. Even if error had been preserved,
the claim fails.
In the context of an Alford plea, the standard for voluntariness is “whether
the plea represents a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Alford, 400 U.S. at 31. Swenka’s
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signed guilty plea contained multiple acknowledgements the plea was entered
with the advice of counsel and was made voluntarily, intelligently, and of
Swenka’s own free will. The voluntary and intelligent nature of the plea was
confirmed during the plea colloquy. Swenka’s statements to the court
demonstrated he understood his rights and understood the benefits of the plea,
chiefly that the State agreed to dismiss the charge of homicide by vehicle while
drag racing, a class “D” felony. There is nothing in the record supporting
Swenka’s claim his plea was involuntary or unknowing.
We also conclude Swenka’s plea had a factual basis. As a general rule,
“[t]he district court may not accept a guilty plea without first determining that the
plea has a factual basis.” State v. Schminkey, 597 N.W.2d 785, 788 (Iowa
1999). “This requirement exists even where the plea is an Alford plea.” Id. “In
deciding whether a factual basis exists, we consider the entire record before the
district court at the guilty plea hearing, including any statements made by the
defendant, facts related by the prosecutor, the minutes of testimony, and the
presentence report.” Id. The elements of the offense were stipulated to in the
parties’ written plea agreement. Further, as set forth in the statement of facts
above, drawn from the minutes of testimony, there was a factual basis supporting
Swenka’s guilty plea.
For the foregoing reasons, we affirm the district court’s judgment and
sentence.
AFFIRMED.